Cite as Pavlides v. Niles Gun Show, 93 Ohio App.3d 46 (1994)
Pavlides et al., Appellants,
v.
Niles Gun Show, Inc. et al., Appellees.
Nos. CA 9443, CA 9455.
Court of Appeals of Ohio, Stark County.
Decided Feb. 14, 1994.
Allen Schulman, Jr. and Elizabeth A. Burick, Canton, for
appellant Gregg L. Pavlides.
Edwin Davila, Canton, for appellant Thomas E. Snedeker.
Ralph F. Dublikar and James F. Mathews, Canton, for appellees
Niles Gun Show, Inc. and Richard L. Walters.
GWIN, Presiding Judge.
Plaintiffs, Greg L. Pavlides and Thomas E. Snedeker
("appellants"), appeal from the judgment summarily entered in the
Stark County Court of Common Pleas dismissing appellants' causes of
action based upon negligence and willful and wanton misconduct
against defendants-appellees, the Niles Gun Show, Inc. and Richard
Walters, president and sole shareholder of Niles Gun Show. Inc.
The court determined that defendants, as promoters of a gun show at
the Canton Civic Center, owed no legal duty to protect the general
public from third parties who may steal a firearm from the
exhibition and subsequently use the weapon to injure a member of
the general public. Although appellants' separately filed their
causes of action, the cases where consolidated in the trial court
and this court. Plaintiffs Pavlides and Snedeker respectively
assign as error:
PAVLIDES
"I. The order of the trial court in granting summary judgment
in favor of appellees by finding that 'reasonable minds could only
conclude that the appellees did not owe any duty to the appellant
to protect him from harm by a foreseeable danger'--is unlawful,
unreasonable and against the manifest weight of the evidence and
case law presented.
"II. The order of the trial court in granting summary judgment
in favor of the appellees on appellant's claim of willful and
wanton misconduct is unlawful, unreasonable and against the
manifest weight of the evidence and case law presented.
SNEDEKER
"I. The trial court erred in granting summary judgment in
favor of appellees by finding that reasonable minds could only
conclude that the appellees did not owe any duty to the appellant
to protect him."
FACTS
We present the facts of this case in the light most favorable
to appellants, the parties who opposed the summary judgment motion.
See Civ.R. 56; Houshell v. Am. States Ins. Co. (1981), 67 Ohio
St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 315 ("[T]he
inferences to be drawn from the underlying facts contained in the
affidavits and other exhibits must be viewed in the light most
favorable to the party opposing the [summary judgment] motion, and
if when so viewed reasonable minds can come to different
conclusions the motion should be overruled.").
Defendant Niles Gun Show, Inc. is an Ohio corporation engaged
in the business of sponsoring and promoting shows at which a
variety of items, primarily firearms, are displayed and offered for
sale by independent vendors who rent space from the corporation.
On the weekend of January 18 and 19, 1992, Niles Gun Show, Inc.
conducted such a show at the Canton Civic Center. The corporation
rented the center from the city of Canton and paid the city for
police and fire protection. However, personnel for Niles Gun Show,
Inc. were responsible for visitor ingress at the center and
collecting the $3 per person admission fee.
It is the policy of Niles Gun Show, Inc. to deny entrance
"whenever possible" to all unsupervised individuals under the age
of eighteen. The company's personnel controlling admission at the
show are instructed to refuse entrance to individuals suspected of
minority, if unaccompanied by an adult, unless proof of majority is
established. Richard Walters formulated this policy because young
children have no reason to be at a gun show and/or involved with
firearms. Walters explained that difficulties exist in controlling
unsupervised minors and dangerous weapons being stolen.
Although Walters acknowledges previous thefts of firearms from
shows held in the Canton Civic Center, his company does not require
the independent vendors to secure the firearms in any manner.
[footnote 1] Instead, Walters permits each vendor to determine how
he or she will display his or her particular weapons. Walters
further acknowledges that it is not the company's policy to
prohibit the independent vendors from selling ammunition to minors.
[footnote 2] In fact, Walters did not know whether such a sale is
illegal.
On Sunday, January 19, 1992, Edward A. Tilley Ill, Perry
Wiegreff, Jayson Troyer and Brian Limbacher entered the Canton
Civic Center gun show on two separate occasions. At the time,
Tilley and his companions where all minors with their respective
years of age being sixteen, fifteen, thirteen and seventeen. The
minors entered the gun how through the main entrance of the Civic
Center by paying the requisite admission fee of $3 each. The boys
gained entrance and remained at the show on both occasions without
inquiries as to their ages.
During their two visits, the boys stole numerous "hand
weapons" including a .25 caliber automatic pistol, a .38 caliber
pistol and a small caliber Derringer. Troyer, the thirteen year
old, successfully purchased .38 caliber ammunition from one of the
vendors at the gun show. In describing the thefts, Tilley
explained that the firearms were "just laying around" on tables and
we "just pick[ed] them up and walk[ed] away with them * * * it was
easy."
On January 20, 1992, at approximately 1:30 a.m., Tilley and
Wiegreff stole a Chevrolet Camaro. Tilley purposely operated the
Camaro on snow-covered roads so to slide into trash cans placed on
the side of the road. Witnessing this activity, appellants
Pavlides and Snedeker followed the Camaro in their separate motor
vehicles. During the chase, the Camaro spun around to a stop and
Pavlides and Snedeker parked their vehicles and began walking
toward the Camaro. Pavlides ordered the driver to exit the Camaro,
but Tilley responded by shooting Pavlides once in the chest with
the stolen .38 caliber handgun. Upon hearing the shot, Snedeker
turned to run back to his vehicle, whereupon Tilley shot him in the
back of the head. Although both men survived the gun shots,
Pavlides' injury left him paralyzed from the waist down and
Snedeker suffered less serious injuries. Tilley was convicted and
sentenced upon his guilty plea to two counts of attempted murder,
with two firearms specifications, and one count of unauthorized use
of a motor vehicle, in violation of R.C. 2923.02 and 2913.03(A),
respectively.
In filing the within actions, appellants assert that Niles Gun
Show, Inc. and Richard Walters, as the promoter and sponsor of the
gun show, had a duty to protect the general public from unlawful
acts of third parties who may steal guns from independent vendors
and subsequently injure a member of the general public. Appellants
claim Niles Gun Show, Inc. and Richard Walters breached that duty
by allowing unsupervised minors into the gun show, allowing weapons
to be displayed without properly securing same from theft,
permitting the independent vendors to sell weapons and/or
ammunition to minors, and in not establishing and enforcing strict
safety and security measures. Appellants maintain the breach of
this duty was the proximate cause of their injuries and it was
foreseeable that the breach of this duty would result in an injury
to the general public. Appellants further maintain this negligent
conduct constituted willful and wanton disregard for the safety of
others, including appellants.
Upon defendants' motion for summary judgment, the court
determined that genuine issues of material fact existed regarding
proximate cause and foreseeability. However, the court found as a
matter of law that the aforementioned duty does not exist and
appellants' causes of action for negligence and willful and wanton
misconduct must be dismissed.
I
Through Pavlides' first assignment and Snedeker's sole
assignment, appellants maintain the trial court erred in summarily
dismissing the causes of action based upon negligence. We agree.
Civ.R. 56(C) provides, in pertinent part:
"Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence in the pending case, and
written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
No evidence or stipulation may be considered except as stated in
this rule. A summary judgment shall not be rendered unless it
appears from such evidence or stipulation and only therefrom, that
reasonable minds can come to but one conclusion and that conclusion
is adverse to the party against whom the motion for summary
judgment is made, such party being entitled to have the evidence or
stipulation construed most strongly in his favor."
Summary judgment proceedings present an appellate court the
unique opportunity of reviewing the evidence in the same manner as
the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio
St.3d 35, 36, 30 OBR 78, 7 79, 506 N.E.2d 212, 214. In order to
survive a motion for summary judgment, the nonmoving party must
produce evidence on any issue for which that party bears the burden
of production at trial. Celotex v. Catrett (1986), 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265; Wing v. Anchor Media, Ltd of Texas
(1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the
syllabus.
In order to establish actionable negligence, one must show the
existence of a duty, a breach of the duty, and an injury resulting
proximately therefrom. Jeffers v. Olezo (1989), 43 Ohio St.3d 140,
142, 539 N.E.2d 614, 616; Di Gildo v. Caponi (1969), 18 Ohio St.2d
125, 47 O.O.2d 282, 247 N.E.2d 732.
Appellants maintain they have presented sufficient evidence to
create a genuine issue of material fact as to whether defendants
Niles Gun Show, Inc. and Richard Walters owed the general public,
including appellants, a duty to formulate and enforce strict
security measures to require the independent vendors to properly
secure displayed firearms and to prohibit minors, unaccompanied by
an adult, from entering the gun show and purchasing ammunition.
It is well settled that "[t]he common-law duty of due care is
that degree of care which an ordinarily reasonable and prudent
person exercises, or is accustomed to exercising under the same or
similar circumstances." Mussivand infra, 45 Ohio St.3d at 318, 41
N.E.2d at 270, citing Gedeon v. East Ohio Gas Co. (1934), 128 Ohio
St. 335, 338, 190 N.E. 924, 925. While the creation of a legal
duty is often dependent upon the foreseeability of the
consequences, an actor cannot necessarily avoid the imposition of
a legal duty merely because he/she did not foresee the exact
consequence of his/her action. Mudrich v. Std. Oil Co. (1950), 153
Ohio St. 31, 39, 41 O.O. 117, 121, 90 N.E.2d 859, 863.
"'The test for foreseeability is whether a reasonably prudent
person would have anticipated that an injury was likely to result
from the performance or nonperformance of an act. Freeman v.
United States (C.A. 6, 1975), 509 F.2d 626; Thompson v. Ohio Fuel
Gas Co. (1967), 9 Ohio St.2d 116 [38 0.0.2d 294, 224 N.E.2d 131].'"
Mussivand infra, 45 Ohio St.3d at 321, 544 N.E.2d at 272.
Therefore, the question of whether the within defendants owed
the general public the aforementioned duty turns on whether a
reasonably prudent person would have anticipated a member of the
general public (appellants) was likely to be injured by way of
defendants' alleged negligence. Mussivand v. David (1989), 45 Ohio
St.3d 314, 321, 544 N.E.2d 265, 272. It is not necessary that the
defendants should have anticipated the particular injury. Id.
Instead, it is sufficient if defendants' action or inaction was
likely to result in an injury to someone. Mudrich v. Std Oil Co.,
supra.
In response to defendants' motion for summary judgment,
appellants submitted the affidavit of Bill Goodman, the sole owner
and operator of International Gun-A-Rama, Inc., which corporation
is in the business of promoting, managing, and organizing gun,
knife, hunting and shooting sports shows in a five-state region.
The affidavit provides, in pertinent part:
"I have personally been involved in promoting and managing gun
shows for over twenty years and promote approximately seventy gun
shows per year. As the promoter, my duties include securing a
suitable location, interviewing exhibitors and establishing safety
policies and procedures which are to be followed by all exhibitors
and patrons at my gun shows. The safety procedures I have
established and that are enforced at all my shows include:
"(a) not permitting anyone under the age of sixteen to enter
the show unless accompanied by an adult;
"(b) having several check points that all patrons must pass
through before entering the gun show;
"(c) requiring exhibitors to keep all firearms secured either
in display cases or tied down with cable or ropes;
"(d) having several employees patrol the show to insure that
all safety rules and procedures are being adhered to by exhibitors
and patrons.
"Based upon my review of the facts and evidence presented to
me and my experience and expertise in the operation and safety of
gun shows, I hold the following opinions:
"(a) Defendant Richard Walters and the Niles Gun Show, Inc.
were negligent and failed to comply with the standard of care
recognized in the gun show industry by among other things:
"(1) failing to require that employees check identification to
prohibit any persons who appears [sic] under the age of sixteen
from entering the gun show unless accompanied by an adult;
"(2) failing to prohibit exhibitors from selling firearms or
ammunition to minors;
"(3) failing to require exhibitors to secure all firearms with
the use of cables/ropes or display cases;
"(4) failing to have established any safety procedures and/or
policies to be utilized in the operation of the gun show;
"(5) failing to provide sufficient security and/or employee
supervision during the operation of the gun show.
"Based upon my experience and expertise, I am of the opinion
that the availability of any type of firearm and ammunition in the
possession of a minor creates a potential danger, and it is clearly
foreseeable that a weapon in the hands of a minor will result in
injury. Based upon the fact that a 13-year old boy was able to
purchase .38 caliber hollow point ammunition and that three [sic]
minors were permitted into the defendant Niles Gun Show and able to
easily steal firearms creates a foreseeable danger that said minors
would use these firearms to cause injury."
From this affidavit and the facts as set forth above, we
believe reasonable minds could conclude the defendants Niles Gun
Show, Inc. and Richard Walters owed the general public, of which
appellants are members, the duty of preventing unsupervised minors'
entrance into a gun show where unsecured firearms are displayed.
Richard Walters had knowledge that firearms had been stolen from
previous gun shows at the Civic Center and comprehended the risks
associated with allowing minors who are unaccompanied by an adult
into a gun show. Nevertheless, defendants took no action to
prevent the theft of weapons and permitted four unsupervised minors
to enter the gun show on two separate occasions. Although
defendants required the independent vendors to follow certain rules
and regulations, those rules and regulations specifically excluded
the proscription that displayed weapons be secured and the
proscription that ammunition not be sold to minors. In view of
today's society, reasonable minds certainly could conclude that
unsecured firearms present an attractive if not irresistible lure
to children.
As Justice Zimmerman remarked in Taylor v. Webster (1967), 12
Ohio St.2d 53, 57, 41 O.O.2d 274, 276, 231 N.E.2d 870, 873:
"It is a matter of common knowledge that the placing of an air
gun in the hands of a youngster without direct supervision is
fraught with danger. By so doing, a reasonable probability exists
that a situation could develop of the kind shown in this case. By
allowing Mark to have the gun defendant laid herself open to the
consequences of that unlawful act. Where two or more persons of
immature years and judgment congregate with an air gun available,
there exists the opportunity and often the impulse to use the gun
carelessly and recklessly with the result that injury ensues. News
accounts of such happenings are not uncommon."
The trial court's determination that genuine issues of
material fact exist as to the issues of foreseeability and
proximate cause does not relieve this court from conducting an
independent review of those matters. Foreseeability and proximate
cause are not equatable, but they are intertwined. Mussivand v.
David, supra.
"[I]n order to establish proximate cause, foreseeability must
be found. In determining whether an intervening cause 'breaks the
casual connection between negligence and injury depends upon
whether that intervening cause was reasonably foreseeable by the
one who was guilty of the negligence. If an injury is the natural
and probable consequence of a negligent act and it is such as
should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the
negligence.'" Id., 45 Ohio St.3d at 321, 544 N.E.2d at 272.
The general law school concept stated that one is not liable
in negligence for the intervening criminal acts of another. The
criminal acts of another were viewed as unforeseeable and
superseding in nature. That black and white distinction has become
muddled as the development of law recognized that criminal activity
can be anticipated under certain circumstances:
"An occupier of premises for business purposes may be subject
to liability for harm caused to a business invitee by the conduct
of third persons that endangers the safety of such invitee, just as
such an occupier may be subject to liability for harm caused to
such invitee by any dangerous condition of those premises." Howard
v. Rogers (1969), 19 Ohio St.3d 42 [48 O.O.2d 52, 249 N.E.2d 804]
paragraph one of the syllabus.
In Snow v. Fraternal Order of Eagles (Nov. 18, 1993), Richland
County App. No. 93-CA-22, unreported, 1993 WL 500297, this court
held:
"If it is determined that [a business establishment] should
have foreseen that injury was likely to occur to its patrons from
the criminal activity occurring in its parking lot, a genuine issue
of material facts exists as to whether [the business establishment]
breached its duty to protect and/or warn [its patrons]."
The facts of this case present the issue of whether reasonable
minds could conclude that defendants should have foreseen or
anticipated the two types of criminal activity by the minor
children herein. In construing the evidence in a light most
favorable to appellants, we believe reasonable minds could conclude
that defendants, based upon their prior knowledge of thefts and
risks associated with permitting unsupervised minor children into
a gun show, should have foreseen that children could be lured into
stealing an unsecured firearm which the child could not otherwise
legally purchase. The secondary and more troublesome criminal
activity involves the subsequent use of the stolen firearm by one
of the children to intentionally shoot appellants. Should the
defendants have foreseen that children who successfully steal a
firearm and purchase suitable ammunition at its gun show would use
the loaded firearm in the pursuit of criminal activity? We believe
reasonable minds could answer this query affirmatively.
Undoubtedly one could reasonably anticipate that a loaded
firearm in a child's hand may negligently be discharged causing
injury or even death. If such an accident were to occur, the child
could be criminally prosecuted for negligent homicide. That
criminal activity most likely would not be viewed as a superseding
cause that would break the causal connection between the adult
owner of the firearm who negligently permitted the child to gain
access to the weapon. Likewise, we believe reasonable minds could
conclude that the intentional act of Edward A. Tilley III, a minor
child, in shooting appellants was not a superseding cause that
would break the casual connection between defendants' original
negligence. This matter is best left to the trier of fact in
determining whether the criminal activity in this case could have
and should have been reasonably anticipated by defendants.
Accordingly, we sustain Pavlides' and Snedeker's first assigned
errors and reverse the trial court's judgment dismissing their
negligence claims.
II
Through Pavlides' second assignment, he maintains the trial
court erred in summarily dismissing his claim that defendants'
failure to provide adequate security to prevent unsupervised minors
from entering the gun show where unsecured firearms were displayed,
as well as defendants' failure to formulate the policy that no
vendor sell ammunition to a minor, constituted willful and wanton
misconduct.
Pavlides seeks to prove that defendants' negligence was a
conscious and deliberate disregard of the interests of others so as
to rise to the level of willful and wanton misconduct. Such proof
would allow Pavlides' claim for punitive damages to survive. See
Vilella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 543 N.E.2d
464; Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174;
Detling v. Chockley (1982), 70 Ohio St.2d 134, 24 O.O.3d 239, 436
N.E.2d 208.
From our review of the evidence submitted thus far, especially
the facts as recited herein and Bill Goldman's affidavit, we
believe reasonable minds could conclude that defendants' negligence
constituted a conscious and deliberate disregard of the interests
of others.
Accordingly, we sustain Pavlides' second assigned error and
reverse the trial court's judgment summarily dismissing appellant
Pavlides' claim that defendants' negligence constituted willful and
wanton misconduct.
STRICT LIABILITY
Appellant Snedeker raises for the first time in this case an
argument regarding strict liability.
We overrule this argument for appellant's failure to raise
same in his complaint and/or in the trial court.
For the foregoing reasons, the judgment entered in the Stark
County Court of Common Pleas, Ohio, is hereby reversed, and we
remand this cause to that court for further proceedings according
to law.
Judgment reversed and cause remanded.
SMART and WILLIAM B. HOFFMAN, JJ., concur.
FOOTNOTES
1. R.C. 2923.19 provides: "(A) No person, in acquiring, possessing,
carrying, or using any dangerous ordnance, shall negligently fail
to take proper precautions:
"(1) To secure the dangerous ordnance against theft, or
against its acquisition or use by unauthorized or incompetent
person:
"(2) To insure the safety of persons and property.
"* * *
"(b) Whoever violates this section is guilty of failure to
secure dangerous ordnance, a misdemeanor of the second degree."
2. Section 922(b)(1), Title 18, U.S. Code reads as follows in
pertinent part: "It shall be unlawful for any licensed importer,
licensed manufacturer, licensed dealer, or licensed collector to
sell or deliver--(1) any firearm or ammunition to any individual
who the licensee knows or has reasonable cause to believe is less
than 18 years of age, and, if the firearm, or ammunition is other
than a shotgun or rifle, or ammunition for a shotgun or rifle, to
any individual who the licensee knows or has reasonable cause to
believe is less than 21 years of age."